Evidence submitted by the Bar Council
Why has there been such a large increase in spending
on criminal legal aid?
Perhaps contrary to popular mythology, there
is no evidence that the overall increase, or indeed unit cost
increases, are "lawyer-driven" rather than demand-led.
The firm practitioner view is that the central driver is increased
complexity and trial length. We live in an age of rapidly changing
criminal justice policy with annual Criminal Justice Bills, and
the last decade has produced major legislative changes in almost
every area of law, practice and procedure of which the Human Rights
Act, and Proceeds of Crime Act are but two important examples.
Moreover, there are strong political currents to increase substantially
the number of prosecutions undertaken.
The reality is that no systematic work has been
done on what the real cost drivers are and the Department appears
to concede that the answer is simply not known. Costs are increasing
at the same time at a significant rate on the prosecution side,
and the unit cost increase is the same for both solicitors and
counsel. It is the Bar's hope that the Effective Trial Management
Project process, coupled with the Fundamental Review of Legal
Aid will begin to address these issues. However, that process
has only just begun.
The DCA's recently published "Independent
Review of the Community Legal Service" commented that
"At national level, the CLS budget appears
vulnerable to policy changes, particularly those made by other
government departments",
and recommended that the Department
"undertake a more robust legislative impact
analysis and seek and undertaking from either the Treasury or
other government departments that the DCA's budget will increase
by the amount necessary to meet increased demand due to new legislation
. . . the discussions with other government departments are at
a relatively high conceptual level—for instance, they do
not always involve detailed economic analysis of the financial
implications of new legislation on demand for CLS provision and
do not always follow through to delivery issues".
The Bar agrees that legal aid funding of criminal
cases must be sustainable and that this requires the rising unit
cost of all cases, but particularly the most expensive cases,
to be investigated and addressed. It is significant, however,
that the DCA's Annual Report indicates an increased number of
sitting days in the Crown Court—from 98,500 in 2002-03 to
a projection of 104,200 in 2004-05. The Bar suspects that this
does not simply arise from increased volumes of business, but
marks a continuing increase in trial length.
Do the Government's proposals represent the best
way of controlling rising expenditure on criminal legal aid and
how effective are they likely to be in practice?
The Bar has consistently argued that contributions
towards legal costs should be sought from those able to pay, and
that criminal legal aid should be more sharply focussed according
to an interests of justice test. However, in the light of what
we have said above, we do not consider that the present proposals
represent a real or significant step towards controlling rising
expenditure on criminal legal aid because they simply do not address
the core issues of trial length and complexity in cases where
publicly funded representation is available. The focus here is
upon transferring competence to judge "the interests of justice"
from the courts, and the expense, administrative burden and risk
of collecting contributions from the executive to the instructed
lawyer. Our strong view is that both of these measures are fundamentally
misconceived.
The assertion in the consultation paper is that
the current £9 million cost of the court applying the Interests
of Justice (IOJ) test will be "saved". However, this
includes no estimation of the additional expense of this task
being undertaken by thousands of solicitors. If the intention
is simply to pass the cost of administering the test onto solicitors,
this will have the effect of adding further financial pressure
and administrative burdens onto hard-pressed practitioners. If
the exercise is chargeable, is it far from obvious how it will
cost less in the hands of those thousands of solicitors rather
than 150 court centres. We fear that it would have the effects
of even greater inconsistency; create conflicts of interest between
solicitors and their clients and would almost certainly cost as
much more to administer. Given the current weakness of LSC auditing
of contracted solicitors, it seems unrealistic to suggest that
LSC auditing of several thousand contracted solicitors will achieve
greater consistency than closer scrutiny of the courts' decision-making
processes.
There is also a perception that there is an
increasing willingness in the courts to grant legal aid because
it assists the courts "perform"—a represented
defendant usually meaning a shorter case—as well as an attitude
that if the State is represented, then so should the defendant
be. There is clearly a cost benefit analysis to be undertaken
in relation to the costs of representation—even in more
minor cases—and systemic savings to the Courts Service and
other players. Not only does lack of representation generate longer
hearings and more adjournments, but a lower quality of justice,
more appeals and, ultimately, knock-on costs in other areas of
public provision. In the longer term, ignoring systemic savings
in order to protect Departmental budgets may be a false economy
for government.
How will the re-introduction of a financial eligibility
(means) test affect access to justice?
The figures clearly show a considerable increase
in the number of grants since means testing was abolished in 2001
(40% up in 2002 and 50% in 2003—para 73.) The consultation
paper states that the increase is "unaccounted for"
(para 74). Various "drivers" are acknowledged such as
changes in sentencing guidelines, tougher guidelines on breach
of community sentences, the effect of the Human Rights Act, and
other policy initiatives by Government. However, it is clearly
the case that a major reason is the availability of "free"
assistance to those who would previously have failed the means
test and declined to apply.
The Bar supports the general policy that a defendant
with the means to fund their representation should do so. But,
as we have indicated above, the picture is a more complex one.
In particular, the speed, efficiency and delivery of justice must
not be undermined, otherwise disproportionate systemic costs may
arise elsewhere. There is a balance to be struck, and it is vital
that any means test does not increase unnecessarily the number
of unrepresented defendants. This is only likely to add to systemic
costs. Although the old means test was not very effective at collecting
contributions it still generated income and it ought to be capable
of simplification and improvement. It is here, we believe, that
the way forward is to be found. Crown Court cases will remain
covered by the recovery of defence costs scheme in any event.
DELEGATION OF
OPERATION AND
RISK TO
THE PROFESSION
This proposition is at the heart of the current
proposals. We consider that it is both misconceived and wholly
unfair to off-load administration costs and financial risk onto
the professions.
(a)
It would add substantial administrative overheads
and bureaucratic pressures to legal aid solicitors who are already
hard-pressed. They are—we judge—presently close to
being overwhelmed by the burdens of managing general criminal
contracts. Such a proposal places solicitors at risk of constant
conflict with clients in trying to enforce legal aid contributions
and this would seriously undermine the solicitor-client confidence
which is at the heart of administering justice. In practice we
suspect they would be inclined to avoid "contribution"
cases, for those reasons, wherever possible.
(b)
Barristers are not generally approached and instructed
directly by members of the public. Nor are barristers at present
able to apply to the Legal Services Commission for public funding
on behalf of a client. If approached directly by a person who
may be eligible for public funding, the barrister must advise
the client that s/he cannot investigate the possibility of public
funding and that the client must instruct a solicitor to pursue
this possibility.
(c)
If a barrister is to be at risk of non-payment, then
for the risk to be acceptable there must be the ability to enforce
it by legal action against the client. In order to enforce payment
of legal aid contributions, and to run the financial risk of non-payment,
it may be necessary for the barrister—or solicitor advocate—to
be directly contracted to the client, rather than being instructed
by an intermediary. This raises enormously complex issues which
have plainly not been considered by those who have generated the
current proposals. The specialist referral role of the barrister,
and the separation of the litigation function of the solicitor,
exists for important reasons of public policy. The rule against
holding of or dealing directly with client funds is at the heart
of this. The position is reflected in statute and underpinned
by the Bar's Code of Conduct. The policy was affirmed in the Kentridge
Report, which considered in detail whether any alteration of the
regulations should be made so as to permit direct access by the
public to advocates. To the extent that limited direct access
was recommended, the Report made it clear that:
"An essential condition of permitting public
access in our view is that there should be no expansion in the
functions that barristers are permitted to undertake".
A barrister is prohibited not only from directly
conducting litigation, but the Code of Conduct (Paras 307(f),
401(b)) makes it clear that a barrister must not:
(b)
undertake the general management, administration
or conduct of a lay client's affairs.
Since a barrister must not act in breach of
the Code, the current proposals require barristers to undertake
a financial risk which they are unable to effect, manage or control.
It is irrational, unreasonable and unfair to impose upon an advocate
such a risk. Moreover, in practical terms, work could not be undertaken
upon that basis.
(d)
In addition, there are number of further issues which
make the proposal simply unworkable in practice. How is an advocate
to know whether a client's contributions are up to date? Is it
proposed that the advocate makes such an enquiry in every case
before accepting instructions? (It would be a very unwise advocate
who failed to do so.) How is s/he to enforce payment where contributions
are in arrears? Is s/he to withdraw the following morning if the
arrears are not forthcoming? Are the proceedings then to be adjourned
in the absence of representation?
Should the authority to grant the right to publicly
funded representation be removed from the courts and transferred
to the Legal Services Commission?
There is a strong public interest in legal aid
being spent wisely and value for money obtained for the public
purse. However, we take the view that the courts—and not
an executive agency—must exercise the right to determine
what is in the interests of justice. This is, in essence, a judicial
function. As a matter of constitutional principle, questions of
representation in criminal cases—where the state brings
charges against an individual citizen—ought to be determined
by the judiciary and not the executive.
The court has no financial interest in the outcome
of a legal aid application. Accordingly, judicial determinations
of the IOJ test currently have the confidence of applicants. The
court is seized of the detailed facts in every case and has the
benefit of oral submissions by the lawyers. It must be best placed
to decide what is, or is not in the interests of justice in any
particular case.
By way of contrast, the LSC—an executive
agency—has a direct institutional interest in the number
of grants. It has a budget and financial targets which must be
achieved. There inevitably exists a temptation to use the "interests
of justice test" as a mechanism for financial control. We
can see no other practical or political rationale for this transfer
of function, save as an economic mechanism to control costs. The
result will be an inevitable loss of confidence in an independent
application of the IOJ test regardless of cost. The assertion
in the consultation paper that the courts are being "too
favourable" to applicants is unsupported by any evidence
or analysis. The Bar believes that the change would cause a significant
loss of confidence in the fair and objective application of the
test.
Are solicitors best placed to determine eligibility
for criminal aid to grant help to qualifying clients?
The Bar believes that if the applicant's solicitor
has to apply an IOJ test to his/her client's case s/he will have
a conflict of interest. S/he will have a direct financial interest
in the outcome whether the client is penniless (and will not therefore
be a client if refused), or has funds (in which case he may have
a private client if he refuses). For the first time under contracting
arrangements, the solicitor may at risk of direct conflict of
interest, and professional relationships and confidence will be
substantially undermined by having to confront or disappoint their
clients in this way. In all of this, the solicitor will also have
in mind his/her performance under his/her contract which is being
measured by the LSC.
General Council of the Bar of England and Wales
22 June 2004
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